Delhi High Court made it clear in a decision that women can also be made accused in the case of penetrative sexual assault. The High Court gave this decision in a case related to the POCSO Act.
Justice Anup Jairam Bhambhani has given this decision in the Sundari vs Delhi case. Justice Bhambhani said, under the POCSO Act, both men and women can be made accused in the cases of ‘penetrative sexual assault’ and ‘aggravated penetrative sexual assault’.
Justice Bhambhani said that ‘he’ written in Section 3 of the POCSO Act does not mean only men. The court said that in such cases there cannot be discrimination on the basis of gender.
What is the whole matter?
In 2018, a case was registered against a woman resident of Delhi for sexually assaulting a child. In March this year, the trial court had framed charges against the woman. After this, the woman challenged the High Court on the grounds that she cannot be made an accused under Sections 3 and 5 of the POCSO Act.
The woman’s argument was that only men can be made criminals under Sections 3 and 5, because the word ‘he’ has been used in it.
What did the High Court say in its decision?
– Justice Bhambhani said that the word ‘he’ used in Section 3 of the POCSO Act cannot be given the meaning that it is only for men. Both men and women should be included in its scope.
The court said that ‘he’ has been defined nowhere in the POCSO Act. In view of the provisions of Section 2(2) of the POCSO Act, we must return to the definition of ‘he’ as in Section 8 of the IPC. (Gender is defined in Section 8 of the IPC. In this ‘he’ is used for both male and female)
– Justice Bhambhani said that the POCSO Act was made so that children can be protected from sexual crimes, whether the crime is committed by a man or a woman.
How is the woman accused in penetrative assault?
The High Court also said that according to the provisions of the POCSO Act, entry of any object into the private parts of children is a sexual offence. Therefore, it is not correct to say that sexual crimes are limited only to penetration of the penis.
The court said that the pronoun ‘he’ used in sections 3(a), 3(b), 3(c) and 3(d) of the POCSO Act should not be interpreted in such a way that the crimes included in those sections are limited to only ‘ Should be limited to ‘men’.
The court said that it is important to note that according to the provisions of the POCSO Act, penetrative sexual assault is not limited to the penetration of the penis only, any object or any part of the body is within its scope.
– A comparison of the crimes mentioned in Section 375 (rape) of the IPC and Sections 3 and 5 of the POCSO Act shows that these two crimes are different. Section 375 refers to ‘man’, while Section 3 of the POCSO Act refers to ‘person’. There is no reason why the word ‘person’ in Section 3 of the POCSO Act should be read only in the context of ‘man’. Therefore, the crimes mentioned in Section 3 and 5 of the POCSO Act are crimes irrespective of gender.
What are Sections 3 and 5 of POCSO Act?
Section 3 of the POCSO Act defines ‘penetrative sexual assault’ and Section 5 defines ‘aggravated penetrative sexual assault’. According to this, if a person inserts a penis or any object in the private part or mouth of a child, then it will be considered as penetrative sexual assault.
There is a minimum punishment of 10 years for penetrative sexual assault. This can be increased to life imprisonment. There is also a provision for fine. At the same time, under Section 6, there is a provision of 20 years of imprisonment in the case of serious penetrative sexual assault. There is also a provision for life imprisonment and death sentence in such cases. Under the POCSO law, if sentenced to life imprisonment, the offender will have to remain in jail for as long as he is alive.
What is POCSO Act?
POCSO means Protection of Children from Sexual Offenses Act. This law was brought in 2012. It makes sexual abuse against children a crime.
This law applies to both boys and girls below 18 years of age. Its purpose is to protect children from crimes related to sexual harassment and obscenity. Under this law, people below 18 years of age are considered children and there is a provision for strict punishment for crimes against children.
Earlier there was no death penalty in the POCSO law, but in 2019 it was amended and a provision for death penalty was also made. If a life sentence is given under this law, then the convict will have to spend his entire life in jail. This means that the convict cannot come out of jail alive.
Similarly, if a person is found guilty of using a child for pornography for the first time, he can be sentenced to five years’ imprisonment and for the second time to seven years’ imprisonment. Apart from this, fine will have to be paid separately.
If a person stores, displays or shares child pornography, he can be punished with a jail term of up to three years or a fine or both if found guilty.
If a person makes commercial use of child pornography, then if found guilty for the first time, he can be punished with imprisonment of 3 to 5 years or fine or both. If found guilty for the second time, there is a provision of punishment of 5 to 7 years in jail or fine or both.
What do the statistics say on POCSO Act?
According to the data of National Crime Records Bureau (NCRB), the number of cases registered under the POCSO Act is increasing year by year.
The NCRB report shows that in 2021, about 54 thousand cases were registered across the country under the POCSO Act. Whereas, earlier in 2020, 47 thousand cases were registered. In the five years between 2017 and 2021, more than 2.20 lakh cases have been registered under the POCSO Act.
However, the conviction rate under the POCSO Act is very low. Statistics show that in five years, the trial of 61,117 accused has been completed, out of which only 21,070 i.e. about 35% have been punished. The remaining 37,383 were acquitted.